Medical malpractice lawsuit filed by The Leto Law Firm–Should legally married same-sex couple be able to assert claim?

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Florida law does not allow same-sex marriage.  And Florida case law has consistently held that same-sex couples are not entitled to the same legal rights as traditional couples.  However, in more progressive states, there has been a trend to legalize same-sex marriage and allow people to decide freely who they can and cannot marry.  With marriage comes a great deal of legal entitlements such as tax benefits, estate planning benefits, health care surrogacy rights, and the right to pursue a claim in court when your spouse is either injured or killed by someone else’s negligence.

 

In a Florida medical malpractice case recently filed by The Leto Law Firm against a doctor in Lake County, Florida, we allege that a surgeon’s actions while performing hip replacement surgery caused serious and permanent injuries to our client, John Goldstein.  John Goldstein is legally married to man by the name of Sheldon Goldstein.  John and Sheldon were one of the first same-sex couples to enter into a legal marriage in Massachusetts when the state legalized same-sex marriage.  As a result of their legally recognized marriage, we assert that Sheldon should be entitled to the very same rights that any other spouse would be entitled to when their spouse is injured or killed due to someone else’s negligence.

 

However, despite the existence of a marriage license from one of the 50 United States of America, we anticipate that the defense will challenge Sheldon’s legal entitlement to collect for the loss of support and services of his husband.  Why would the defense challenge Sheldon’s legal rights as John’s husband?  The reason is the Defense of Marriage Act, otherwise known as DOMA.  DOMA was enacted under President Clinton and it defines marriage as a legal union between one man and one woman.  The effect of DOMA is that states, like Florida, are not required to recognize same-sex marriage even if that marriage was legally entered into in a sister state.   Because Florida does not recognize same-sex marriage, it will be very difficult for Sheldon to convince the Court that DOMA’s unconstitutionality should allow his claim to proceed.

 

John and Sheldon’s case is one in a long line of challenges to DOMA.  Historically, most cases challenging DOMA have been unsuccessful.  In Florida, in the case of Wilson v Ake, a same-sex couple sued the Attorney General of the United States, seeking to have DOMA overturned as unconstitutional under the Full Faith and Credit Clause and the Due Process Clause of the Constitution.  The Middle District dismissed the couple’s claim in 2005, holding that the right to marry a person of the same sex was not a fundamental right and that DOMA was not unconstitutional.

 

That was 2005.  Since that time, the federal courts have shown a trend away from DOMA, instead opting to provide same-sex couples with rights if they are legally married.  Gill v. Office of Personnel Management which held that DOMA violated the core constitutional principles of Equal Protection; Golinski v.  U.S. Office of Personnel Management which held that the definition of marriage as being between one man and one woman did not satisfy the heightened level of scrutiny provided by the Equal Protection Clause; and Windsor v. U.S. which held that DOMA violated the Equal Protection Clause.

 

Now that there is an apparent conflict between the federal courts and DOMA, the United States Supreme Court has agreed to hear argument as to the constitutionality of DOMA.  Oral argument is set for March 27, 2013 which means that before the end of this year, the U.S. Supreme Court will determine whether DOMA can remain on the books or whether states need to begin recognizing marriages of sister states.

 

In our case, John and Sheldon Goldstein are legally married under the laws of the State of Massachusetts.  Sheldon is seeking to enforce his rights as John’s husband by making a claim for damages in John’s Florida medical malpractice case.  While John and Sheldon know that the battle to be treated equally in Florida is an uphill battle, they believe it is a civil rights battle that must be fought.    As recently as 1967, this country did not force states to recognize interracial marriage.  It was not until the decision in Loving v. Virginia that the United States Supreme Court overturned the ban on interracial marriage.  Predicated on similar logic, John and Sheldon are hopeful that their case will be one of many that will successfully challenge DOMA and provide equal rights and protection to all people that choose to marry.  As was so eloquently stated by the Court in Loving v Virginia, “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” and to deny this right is “directly subversive of the principle of equality at the heart of the 14th Amendment.”

 

The Leto Law Firm is a Miami medical malpractice law firm that represents victims of medical malpractice, personal injury, wrongful death and traumatic brain injury throughout the State of Florida.

Justin Leto’s weekly appearance on nationally syndicated radio talk show, America Now with Andy Dean

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Listen here for Justin Leto on America Now with Andy Dean, Feb 13, 2013

 

Justin Leto appears weekly on syndicated radio talk show, America Now with Andy Dean.  Andy and Justin discuss a wide array of legal, constitutional and political issues.  On this week’s show, one of the topics discussed was gun free zones and the effect that these zones have on the public.  Andy Dean is a strong supporter of the 2nd Amendment and believes that gun free zones create a danger by disarming citizens and making them vulnerable to attack.  In fact, Andy Dean believes that conservative lawmakers should allow citizens injured or killed in gun free zones to sue local governments for creating this “danger”.

 

Wrongful death lawyer, Justin Leto, explains during this segment, that Andy’s idea of suing local governments when citizens are injured by gun violence in a gun free zone is a nonsensical approach that will set a dangerous precedent.  Gun free zones are designed to prohibit the use of guns around schools, in airports, and in other places where large groups of people gather.  Bringing a gun to a gun free zone is a crime.  As such, anyone that uses a gun in a gun free zone to harm another person is committing a crime.  Andy’s suggestion, which is derived from an editorial that appeared in Breitbart recently, would allow victims of criminal acts to sue the government when a law enacted by that government is violated. Simply put, this approach makes no logical sense.

 

Instead, the logical and proper approach is for private businesses to take the necessary steps to ensure that there is adequate security in places where large crowds gather.  All too often, crimes that are committed in public places are preventable if the owner of the property where the crime occurred took steps to protect the invited guests on the property.  However, too many businesses choose to cut costs and save money instead of ensuring that people are protected.  The shooting in Aurora, Colorado is a prime example.  A midnight showing of Batman would certainly warrant security measures that were not taken, and if those security measures were taken, lives may have been saved.

 

Here at The Leto Law Firm, our negligent security lawyers have experience in handling cases involving the negligence of a property owner in providing security.  Follow The Leto Law Firm on Twitter at @justinletolaw

 

You can follow Andy Dean on Twitter at @americanowradio or on facebook at www.facebook.com/AmericaNowRadio

Civil Rights Complaint against Miami-Dade County police profiled in Miami New Times

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The Leto Law Firm and Dean-Kluger Sibley Law filed suit against Miami-Dade County and 13 police officers, alleging a violation of Antonio Andrew’s civil rights.  The Complaint was based upon the shooting death of Antonio Andrew in a sting operation coordinated by the Miami-Dade Police Department.  Recently, the Miami New Times profiled the case in an article you can read here.  This article by the Miami New Times was a follow up to an investigative report published shortly after Antonio Andrew’s death.  As quoted from the article:

 

It was a set-up. As soon as the four would-be-robbers neared the house, cops burst out of their hiding places. Andrew and the others never fired a shot, but were killed nonetheless.

 
Thumbnail image for Antonio Andrew.jpg
Antonio Lee Andrew
Andrew’s corpse was so shredded from bullets that morticians weren’t sure they could prepare him for his funeral. “His body was like a bullet pail,” funeral director Lori Hadley Davis says. “He had more wounds than you could close up. There wasn’t a spot on him that wasn’t shot: his chest, abdomen, and head.”
 
But what Hadley Davis immediately noticed were Antonio’s hands. They, too, were shot as if he had been holding them up in surrender.

 

In the lawsuit, The Leto Law Firm and DKS Law seek damages from the County and the officers for the wrongful death of Antonio Andrews as well as damages for violations of his civil rights.

 

The Leto Law Firm is a Miami personal injury law firm specializing in representing victims of personal injury, medical malpractice, products liability, traumatic brain injury, auto accidents, and commercial disputes.  The Miami wrongful death lawyers at the Leto Law Firm work  hard to ensure that all clients achieve the best results.

Justin Leto’s weekly appearance on nationally syndicated radio talk show, America Now with Andy Dean

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Listen here–Justin Leto’s appearance on America Now with Andy Dean 2-6-13

 

This week, Justin Leto and Andy Dean discussed several legal issues, including the following:

 

1.  California considering a law which would require gun owners to purchase gun insurance.  The State of California is attempting to adopt a law that would require gun owners to purchase insurance as a condition precedent to owning a gun.  The law would impose upon each gun owner a duty to have at least $250,000 in insurance in the event of an incident involving the owner’s firearm which caused injury.  The NRA and other pro-gun groups are concerned that this law will infringe upon gun owner’s 2nd Amendment right to keep and bear arms.

 

2.  Florida car accident laws.  Andy and Justin discuss Andy’s recent experience when he rented a car in Florida, loaned the car to a driver that was not on the rental policy, and that driver caused an accident.  If you rent a car, the rental contract specifies who can and cannot drive the car.  If you allow someone other than a permitted driver to operate the car, and that person causes an accident, the rental car company will not cover you for the losses.  Instead, your own personal car insurance company will be responsible to pay for any losses.  As it relates to Florida car accident law, Florida has a unique law called the “dangerous instrumentality doctrine” which says that an owner of a vehicle is responsible for the acts of any permissive driver.  The owner can be held liable for an accident just because he loaned his car to a friend or relative.  The reason is that Florida has determined that cars are inherently dangerous objects and the act of putting the car on the road, even if driven by someone else, is enough to create liability.

 

Posted by: The car accident lawyers and truck accident lawyers at The Leto Law Firm

 

The Leto Law Firm files a civil rights lawsuit against Miami-Dade County police following a police shooting

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The Leto Law Firm and Dean-Kluger Sibley Law filed suit against the Miami-Dade County Police Department and 13 officers, alleging that the Miami-Dade Police Department and its officers violated the Constitutional rights of Antonio Andrew by staging a phony robbery, ambushing Andrew and several other men in unmarked SUVs, and shooting and killing Andrew, 2 other members of the crew and the confidential informant that helped the police set up this sting operation.  These actions by the police department amounted to a violation of Antonio Andrew’s Constitutional Rights.

 

During the year 2011, the Miami-Dade County Police Department became aware of a crew of men who were robbing known drug dealers.  The crew was armed and would stake out homes where they thought drugs and money were stashed.  When the police began their operation to stop this crew from operating, they were able to infiltrate the crew and flip one of the crew members into a police informant.  That informant was used by police to stage a phony robbery in the Redlands section of Miami.  The police told the informant to tell the crew that there was a drug house in the Redlands that should be targeted.  The informant was also was told to inform the crew that the house could be guarded with armed drug dealers.  As a result of this information  supplied by police to the informant, the crew came armed.  Police claim that they told the informant to remain in the vehicle in order to ensure his safety.

 

When the crew arrived at the house, for reasons still unknown, the informant joined them and approached the house.  Suddenly, several black SUVs surrounded the house.  Men dressed in all black jumped out of the SUVs and surrounded the crew.  The 4 men in the crew ran for safety but before they could escape, they were gunned down in a barrage of hundreds of bullets.  When the gunfire ceased, all 4 men, including the informant, were dead.  Not one single bullet was fired by the 4 dead men.  The men dressed in black in the black SUVs were all members of a Miami-Dade Police task force known as SRT or STOP.  None of them were dressed in police uniforms and none of their vehicles were either marked or lighted.  As far as the 4 man crew was concerned, these shooters were the drug dealers that the informant told them to expect.

 

According to the information gathered, Antonio’s body was discovered at the perimeter of the property, face down and full of bullets.  Bullet holes were present in his back and open hands.  At the time he was killed, he was running away and posed no threat of harm to the officers that killed him.

 

No one will dispute that Antonio was engaging in criminal activity when he died.  But his criminal enterprise does not erase his Constitutional rights.

 

Our Constitution is a sacred document and within the Constitution, our citizens are given certain rights.  Those rights include a right to be considered innocent until proven guilty, a right to a trial by a jury of our peers, a right to be free from cruel and unusual punishment and a right against unlawful detainment.  In this case, each of the allegations against the police department and the officers cites to violations of the most sacred rights that every citizen enjoys.  Whether Antonio Andrew and the rest of the crew were committing a crime is not the issue.  Our society does not permit police officers to administer death sentences to people accused of crimes.  In this case, the Estate of Antonio Andrew alleges that is precisely what occurred.  Antonio is survived by his 18 year old son, Antonio, Jr.

 

A copy of the Complaint filed against Miami-Dade County and the police officers can be read here…Estate of Antonio Andrew v. Miami Dade County, et al

 

Here at the Leto Law Firm, our wrongful death lawyers and brain injury lawyers work tirelessly to ensure that justice is served.

 

Justin Leto’s weekly appearance on America Now with Andy Dean

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ANDY DEAN 1-31-12 Vol 1

 

ANDY DEAN 1-31-12 Vol 2

 

In this week’s discussion, Andy and I discussed several interesting legal issues, including the following:

 

1.  In the Aurora shootings, the Colorado court decided that all claims brought by the victims and their families against the movie theater must be brought under the Colorado Premises Liability Act.  Many of the victims and their families have filed lawsuits against the theatre for failing to provide adequate security at the midnight showing of Batman.  The crux of the claims are that the theater had reason to know that there could be an act of violence and they failed to provide the security that would have prevented this massacre.  In Colorado, when a landowner is accused of causing or contributing to an injury or death as a result of their negligence, all claims against the landowner must be brought under the Colorado Premises Liability Act.  According to the Act, the duties of the landowner vary depending on whether the injured person is a trespasser, licensee or invitee.  In the cases of the Aurora shootings, since everyone that was hurt or killed was an invited guest of the theater (meaning they paid to be there and were on the property with the permission of the property owner), the duty owed to them is one of what we refer to as “reasonableness.”  In other words, the victims in this case will need to prove that the landowners either knew or should have known of the potential dangers and failed to take appropriate action to protect their guests.

 

While this tragedy was ultimately caused by the shooter, oftentimes landowners know of potential dangers but do nothing to fix the problem.  As a negligent security law firm, we represent victims of landowner negligence similar to what occurred in Aurora.  In this particular case, it appears that the theater had security in place during their normal day-time showings and, for unknown reasons, provided less security for the evening showing of Batman.  Whether that lack of security can provide evidence of negligence will ultimately be left for the jury to decide.

 

The Leto Law Firm is a Miami personal injury law firm that provides representation to victims of negligence, wrongful death, traumatic brain injury and medical malpractice.

 

 

Florida Supreme Court protects doctor-patient confidentiality

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Written by Jonathan M. Hixon:

 

The Florida Supreme Court has provided even greater protection to patients by prohibiting insurance companies and their lawyers from talking to your doctors. Just before the New Year, the Florida Supreme Court handed down its decision in Hasan v. Garvar, reversing the Fourth District Court of Appeal and bolstering the strength of doctor-patient confidentiality in medical malpractice cases.

 

The facts of the case begin as any other: Ramsey Hasan instituted a medical malpractice lawsuit against Lanny Garvar, D.M.D and his practice for failure to diagnose and treat a dental condition that resulted in a serious bone infection which caused severe and permanent damage.  In an attempt to relieve his dental complications, Mr. Hasan sought care from an oral and maxillofacial surgeon, Jennifer Schaumberg, D.M.D.  Dr. Schaumberg was not a party to the case, however  Mr. Hasan sought to schedule her for deposition in order to better understand the treatment he was undergoing.  Here is where the facts take an extraordinary turn: while scheduling Dr. Schaumberg’s deposition, Mr. Hasan learned that Dr. Garvar’s insurance company also insured Ms. Schaumberg and had hired a lawyer to consult with Dr. Schaumberg in order to engage in a private, pre-deposition conference.  This obviously concerned Mr.  Hasan, who immediately moved for a protective order to preclude any such conference between the lawyer hired by the insurance company and Dr. Schaumberg, citing to doctor-patient confidentiality.  The trial court denied Mr. Hasan’s motion, and the Fourth District Court of Appeal denied Mr. Hasan’s petition for writ of certiorari, citing the section of the trial court’s order that prohibited the insurance company’s lawyer and Dr. Schaumberg from discussing privileged medical information.

 

Fortunately, the Florida Supreme Court did not see eye-to-eye with the Fourth District Court of Appeal on this issue and quashed their opinion, holding that the physician-patient “privilege prohibits ex parte meetings between nonparty treating physicians and other outside the confidential relationship whether or not they intend to discuss privilege or non-privileged matters without measures to absolutely protect the patient and the privilege.”   The majority of the Court, in the 5-2 decision, focused on the broad scope of Florida Statute section 456.057(8) which provides an “expansive physician patient privilege of confidentiality for the patient’s personal information with only limited, defined exceptions.”

 

The effect of this decision is far reaching.  Oftentimes, insurance companies and defense lawyers attempt to speak with a Plaintiff’s treating doctors under the guise that they will not be discussing anything specific to the patient or the case.  However, as the Florida Supreme Court noted in its opinion, such a conference creates a litany of problems that could potentially end up invading and compromising a very sacred privilege that exists between a doctor and his/her patient.  Now, these private conversations between your doctor and an insurance company or defense lawyer will not occur, thus preserving the doctor-patient privilege.

 

Here at The Leto Law Firm, we represent individuals in cases of medical malpractice, wrongful death, traumatic brain injury and personal injury.

Justin C. Leto on nationally syndicated radio talk show America Now With Andy Dean

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Click here to listen to Justin on America Now with Andy Dean

 

Every Wednesday night, medical malpractice lawyer Justin Leto appears on nationally syndicated radio talk show American Now with Andy Dean.  Justin and Andy debate political topics and discuss the legal news of the day.

 

In this week’s appearance, Andy and Justin discuss the following topics:

 

1.  In Utica, NY the Federal courts decided that giving a police officer the middle finger is not a crime and does not give the police probable cause to initiate a traffic stop.  Referencing the Leto Law Firm’s recent blog on the subject, Justin explained to Andy how people can now legally flip the bird at a cop without concern for being arrested.

 

2.   Bill Maher offered Donald Trump $5 million to prove he was not the spawn of an orangutan.  Sensing the opportunity to have his name remain in the headlines, Donald Trump sent a letter, through his lawyer, enclosing his birth certificate and demanding payment of $5 million from Bill Maher.  Andy and Justin discuss whether the offer and acceptance constitutes a binding contract.

 

3.  A student at a middle school refused to wear an identification badge with a chip embedded inside which could track the student throughout the school.  The student sued the school, seeking an injunction based upon what she perceived as a violation of her religious freedom.  Justin explained to Andy why the tracking device is completely legal.

 

4.  In Los Angeles, a 24-year old man made threats on his facebook page, claiming he intended to mimic the despicable acts of the Newtown school shooter.  Police arrested the man and found 9 guns, including several automatic weapons in his home.  In a shocking and disturbing decision, the Los Angeles district attorney’s office elected NOT to prosecute him, claiming that his threat to go from elementary school to elementary school killing children was not specific enough for an arrest.  Andy and Justin, who differ dramatically on gun laws, agreed that this man has no business possessing firearms and should be in jail.

 

 

 

Giving a cop the finger is not a crime; so says the 2nd Circuit in New York

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The police cannot pull you over just because you decide to flip them the bird, so says the 2nd Circuit Court in Utica, NY.

 

In an interesting and surprisingly historical account of the use of the middle finger, which you can read here, the Court decided that the police had no probable cause to pull over a car when the passenger stuck his hand outside the car window and gave the officer the middle finger.  Calling the use of the middle finger “an ancient gesture of insult,” the Court held that giving the officer the middle finger alone, without any other criminal act, does not form the basis for reasonable suspicion of a traffic violation or impending criminal activity.

 

In this case, the officer pulled along side a car with a female driver and a male passenger.  The male passenger noticed that the officer was using his radar gun to try and catch speeding drivers.  The male passenger apparently disapproved of the police officer’s attempts to pull over speeding drivers and signaled this displeasure by flipping the officer the bird.  This prompted the officer to follow the car to its destination and eventually arrest the man for disorderly conduct.  Those charges were eventually dropped but, feeling that the officer acted maliciously towards him, the man filed a lawsuit claiming his civil rights were violated.  In allowing the case to proceed to a jury, the 2nd Circuit held that the man’s decision to give the officer the finger was not a crime and, thus, the officer’s decision to arrest the man could be considered a violation of his right against unlawful search and seizure under the 4th Amendment to the Constitution.

 

Here at The Leto Law Firm, we represent victims of police negligence, civil rights violations and malicious prosecution.